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The research on recidivism helped change the mind of at least one prominent advocate of sex offender registries. In 1989 Patty Wetterling’s 11-year-old son, Jacob, was kidnapped by a masked gunman while riding his bike home from a convenience store in St. Joseph, Minnesota. He has not been seen since. The crime inspired the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the federal law that created the state registries that Megan’s Law made publicly accessible two years later. “The high recidivism rates I assumed to be true do not exist,” Patty Wetterling told Human Rights Watch in 2007. “It has made me rethink the value of broad-based community notification laws, which operate on the assumption that most sex offenders are high-risk dangers to the community they are released into.”
Looking vs. Touching
People convicted of molesting children have demonstrated a dangerous proclivity, even if they are less likely to repeat the crime than is popularly believed. But what about people who are convicted of possessing child pornography? Although conventional wisdom assumes child-porn consumers are undiscovered or future molesters, that assumption is also wrong.
This year Michael Seto, a psychologist who advises the Integrated Forensic Program of the Royal Ottawa Health Care Group, published a study of this question, co-authored by Karl Hanson and Kelly M. Babchishin of Public Safety Canada, in the journal Sexual Abuse. Seto, Hanson, and Babchishin performed meta-analyses of 24 studies that looked at the criminal histories of “online offenders” (mainly consumers of child pornography) and eight studies that calculated their recidivism rates. They found that one in eight had an official record of committing a contact offense. In the six studies that included self-report data (drawn from treatment sessions and polygraph examinations), one in two child pornography offenders admitted to having sexual contact with children.
Looking forward, Seto says, “C.P. offenders are relatively unlikely to commit contact offenses in the studies that have followed them.” Over all, the recidivism studies indicate that only 2 percent of child pornography offenders committed a sexual offense involving physical contact during the follow-up period, which ranged from 18 months to six years. In short, says Hanson, “there does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending.”
Why would anyone look at this horrible stuff if he was not inclined to imitate it? Troy Stabenow, an assistant federal public defender in Missouri who is a prominent critic of child pornography sentencing policies, put it this way in a 2009 interview with ABA Journal: “People who watch movies like Saw and Friday the 13th are being titillated by the act of torture and murder. That doesn’t mean that they’re going to go out and commit torture and murder.”
Dean Boland, an Ohio defense attorney specializing in child pornography cases, says a substantial share of defendants were themselves victims of sexual abuse as children and look at these images as a way of working through the trauma. He recalls one client, a 65-year-old former pastor who received a sentence of more than 17 years, saying, “When I’m looking at these images, I’m not envisioning myself as the adult. I’m envisioning myself as the kid.”
Yet the legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years—the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking. The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos for something of value, including other photos.
In a devastating 2008 critique of these sentencing policies, available on his office’s website, Stabenow shows that Congress ratcheted the penalties for looking at child pornography upward through a series of ill-considered, undebated dictates driven by little more than public outrage and disgust. The upshot: Between 1997 and 2007, the number of people sent to federal prison for possessing, receiving, or distributing (but not producing) child pornography quintupled, from 238 to 1,170, while the average sentence more than quadrupled, from 21 to 91 months. Among the baffling results of these policies: A defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years. The comparison, Stabenow writes, “demonstrates the absurdity of the system.”
The absurdity has not gone unnoticed by the judiciary. In a 2010 survey by the U.S. Sentencing Commission, 70 percent of federal judges said the recommended penalties for possessing or receiving child pornography are unreasonable. Although the Supreme Court has ruled that the guidelines are only advisory and not mandatory, judges still must justify deviations in written explanations that are subject to review by appeals courts. Many have not been shy in expressing their opinions about the fairness and wisdom of the penalties they are asked to impose.
In a 2008 child pornography case, Robert Pratt, a U.S. district judge in Des Moines, gave the defendant a sentence of seven years instead of the recommended 18. The guidelines “do not appear to be based on any sort of empirical data,” Pratt said, “and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.”
The following year, Lynn Adelman, a U.S. district judge in Milwaukee, cited Stabenow’s critique of the sentencing guidelines when he gave a middle-aged funeral director who was caught swapping child pornography a six-year sentence instead of the 18 years sought by prosecutors. “The flaws identified by Stabenow were certainly evident in this case,” Adelman wrote in his sentencing memorandum. “I could not conclude that under the circumstances of this case, given all of the flaws in the guideline discussed above, that the range deserved deference.”
Jack Weinstein, a U.S. district judge in Brooklyn, has been fighting for years, sometimes through rulings of questionable legality, to spare a married father of five not only the 11-to-14-year sentence recommended by the guidelines but the five-year statutory minimum for receiving child pornography. “Imprisonment of at least five years for this defendant is cruel,” Weinstein wrote in a 2008 opinion.
State penalties for possessing child pornography can be even harsher. In Arizona, one count of possessing child pornography carries a 10-year mandatory minimum sentence, each image qualifies as a separate count, and the sentences must be served consecutively. That’s how Morton Berger, a former high school teacher with no criminal record, ended up with a 200-year sentence in 2003.
In 2006 the Arizona Supreme Court upheld Berger’s sentence, rejecting his argument that it violated the Eighth Amendment’s prohibition of cruel and unusual punishment. Writing in dissent, Vice Chief Justice Rebecca Berch noted that “Arizona’s sentence for this crime is by far the longest in the nation and is more severe than sentences imposed in Arizona for arguably more serious and violent crimes.” For example, “the minimum sentence for possession of an image of child pornography is longer than the presumptive sentence for rape or aggravated assault. A presumptive sentence for possession of two images of child pornography…is harsher than the sentences for second degree murder or sexual assault of a child under twelve.…For molesting a child, one might receive the same sentence that Berger has received for possessing one picture.”